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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

Claimants already getting SDP

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EJ
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Benefits advice line - Coventry City Council

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Would appreciate help from anyone with this, please
New referral today

Clt and ptr on ESA and both on PIP DL.  1 X SDP, 1X carer premium as Ptr is on CA. HB and CTC in payment.
Last week, Ptr moved out to hostel accommodation. Hasn’t yet relinquished CA. Will still be visiting to help with the children and the client herself.
Clt is desperate to hang on to legacy benefits.

If CA is relinquished now, would the receipt of the SDP in the existing award be sufficient, even though it were not directly associated to her, and if she becomes entitled to the SDP in her own right quickly enough for her to retain legacy benefits?
Would HMRC accept this?
And the timing could be critical?

Thanks eveyone
Elaine

Charles
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Who is the claimant for ESA and for HB?

EJ
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Charles - 05 August 2020 05:56 PM

Who is the claimant for ESA and for HB?

Thank you Charles.  Client is the claimant for both ESA and HB.

Daphne
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If they are no longer a couple, your clients ESA and HB claim will change to a single person and she will be entitled to sdp in her own right on both if partner relinquishes CA - she can then submit new single claim for CTC

stevejohnsontrainer
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Sallyann,

Did you want a copy of the email from DWP dated 19.3.2019? If yes email me on ‘steveattheflipchart@mac.com’. I am having trouble loading the format on Rightsnet stream. Probably just my incompetence.

Steve

EJ
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Daphne - 06 August 2020 01:55 PM

If they are no longer a couple, your clients ESA and HB claim will change to a single person and she will be entitled to sdp in her own right on both if partner relinquishes CA - she can then submit new single claim for CTC

Thanks Daphne.  We’ll get the CA stopped straightaway.

As always - and you know this!! - am forever grateful :-)

Owen_Stevens
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This template may be useful for someone who, despite receiving a benefit which included SDP, was treated (prior to the scrapping of the SDP Gateway in January 21) as having made a couple claim for UC on formation of a couple with a UC claimant.

Any adviser going down this path might like to have a careful think about the implications of a return to legacy benefit, to make sure their client would actually be better off.

For the moment this could be done either as an any grounds revision (depending on timings) or (until such time as this is shown to be an official error by a decision of the UT) an any time revision on the grounds of official error.

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Charles
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Interesting argument. Has anyone had success with it?

DWP have confirmed multiple times that they believe deemed claims in such cases can still be made. See this answer to my FoI request, for example:

https://www.whatdotheyknow.com/request/closure_of_claims_to_uc_live_ser#outgoing-726248

Owen_Stevens
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Hi, I’ve won at FTT although DWP have requested a statement of reasons

Charles
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Thanks. Let us know what happens!

HB Anorak
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I remember discussing this with Charles a couple of years ago - although not in such depth as that impressive template.  Essentially: the purpose of the deeming rules is to excuse Reg 9(8) couples from the chore of making a claim*, but it cannot apply in a case where they would not have been able to complete the chore for real in any event; or does it treat them as having done something that they would not have been able to do for real.

*I know it doesn’t really because they still have to set up an account - waddles like a claim, quacks like a claim - but as a matter of law it does.

Thanks for sharing

Mike Haran
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January 2020 client claims ESA and HB for temporary accomodation the same day. Client not previously receiving SDP.

Client told cannot claim ESA (appears no written decision) and claims UC which was awarded.

Months later HB is awarded with the SDP to predate the claim for UC.

Decision to award UC appealed by client on basis of entitlement to HB with SDP at time of claim.

MR was submitted on refusal of ESA but no reply. No appeal submitted on this and “decision” to refuse claim more than 13 months ago.

Is client entitled to HB with SDP at date of claim for ESA, made the same day as the claim for HB?

We are considering amending grounds to include appeal against refusal of ESA claim.
Any thoughts on ensuring entitlement to ESA if the UC appeal succeeds.

Many thanks

Mairi
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It’s my understanding that by January 2020 new claims for irESA couldn’t be made, only ‘new-style’ ESA claims.  It seems that your claimant was only able to claim housing benefit because they had moved into temporary accommodation as that’s one of the exceptions where UC housing costs can’t be paid and HB can be applied for instead.

And having SDP included in only an HB award wasn’t sufficient for someone to get through the ‘gateway’ to apply for irESA at that time.

Va1der
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Mairi - 24 September 2021 08:55 PM

It’s my understanding that by January 2020 new claims for irESA couldn’t be made, only ‘new-style’ ESA claims.  It seems that your claimant was only able to claim housing benefit because they had moved into temporary accommodation as that’s one of the exceptions where UC housing costs can’t be paid and HB can be applied for instead.

And having SDP included in only an HB award wasn’t sufficient for someone to get through the ‘gateway’ to apply for irESA at that time.

The SDP gateway closed in January 2021, not 2020. SDP in HB only would theoretically have been sufficient to activate the gateway. Though, there would not be any TP without the ESA.

My first concern before looking at anything else is the nature of the ‘claim’ to ESA your client submitted in January 2020. Given the backdate the HB claim was clearly taken as valid and effective. But, was an actual ESA claim ever submitted, or was your client merely advised, on the ESA claim phone line say, ‘no, you must claim UC’?
If they phoned ESA before HB that would have been relatively valid advice. Might struggle to evidence that a valid ESA claim was submitted. (If there is an actual ESA MR being processed in the pipeline somewhere, that might change things.)

There not having ever been an ESA award, I’m not sure what would happen with the allowance to ‘reinstate’ legacy benefits where there has been a faulty UC claim.

Mike Haran
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Thanks Va1der.

The client has now produced evidence that an ESA claim was made and predated the HB claim.
He has been told that “it was not processed” when the UC claim was subsequently made.

However, no claim for HB was made when he moved into permanent accomodation as he was then on UC.

If the gateway argument succeeds, the rent arrears will far exceed the SDP gained.